All the Arts, All the Time

Barnes Foundation's disputed relocation is upheld by judge

October 6, 2011 | 2:17
pm

The Barnes Foundation collection in Lower Merion, Pa., one of the most illustrious and distinctive art displays in the world, has received what may be a decisive legal green light for its hotly disputed transfer to a new museum under construction five miles away in downtown Philadelphia.

Judge Stanley Ott of Montgomery County Orphans Court (the equivalent of a probate division judge in California’s Superior Courts) ruled Thursday that there’s no reason to revisit his 2004 decision allowing the Barnes Foundation to abrogate the will of collector Albert Barnes, which specified that his trove of Impressionist, Post-Impressionist and Modern masterworks should hang perpetually at his estate, each picture positioned just as he left it.

Barnes, a patent medicine magnate, died in a car wreck in 1951, leaving an idiosyncratic display of works by Cezanne, Van Gogh, Picasso, Matisse, Renoir, Degas, Modigliani and other European masters.

The ruling means plans can go forward to rehang the paintings in the new $150-million museum scheduled to open May 19. State funds reportedly will cover about a quarter of the museum’s $200-million cost, which includes a $50-million endowment.

A group called Friends of the Barnes had asked Ott to reconsider his ruling on the grounds that Pennsylvania’s then-attorney general, Mike Fisher, didn’t carry out a responsibility to prevent Barnes’ will from being violated. Citing comments Fisher made in "The Art of the Steal," a 2009 documentary about the bid to transfer the Barnes Foundation collection to Philadelphia, the Friends group and other petitioners argued that Ott might have ruled differently seven years ago if he had known that the attorney general had helped to engineer the collection's move to Philadelphia. The main argument for the move was that the Barnes Foundation was in deep financial trouble and could not attract the support it needed to survive if it stayed in Lower Merion.

In his ruling Thursday, Ott wrote that there is "no basis for finding fault" with Fisher's actions.

Samuel Stretton, attorney for the Friends group, vowed Thursday to appeal the ruling and, if necessary, carry it to the final arbiter, the Pennsylvania Supreme Court. Stretton said in an interview that the key issue is whether the Friends have legal standing to insist that the will be honored, given that the attorney general allegedly had shirked a duty to defend Barnes’ intentions.

During an August hearing on the Friends’ request, the Barnes Foundation argued that the attorney general’s duty was not to defend every provision of Barnes’ will, but to uphold the state’s greater interest in ensuring that the financially weak Barnes Foundation would not close or sell off part of the collection.

Evelyn Yaari, a member of the Friends group's steering committee, said Thursday that the notion that the Barnes Foundation was in danger of financial failure is "a fabrication" to disguise the real intention -– grabbing a big new tourist attraction for the city of Philadelphia.

Ott said in his ruling that he considers the attempt to stop the transfer legally frivolous, and ordered the plaintiffs to pay an unspecified portion of the Barnes Foundation’s legal costs. Stretton said that the sanctions are “outrageous, given the serious issues we raised.” At stake, he says, is whether Pennsylvania is undermining philanthropists’ expectations that their wills will be honored and defended by the state.

"They think they're going to bleed us dry and kill us," Yaari said of the sanctions. "We don't die so fast." She said the Friends group anticipated that Ott would impose sanctions and, using money donated by supporters from around the country, bought an insurance policy to cover possible payments.

Bruce Castor Jr., a Montgomery County commissioner who opposes taking the collection to Philadelphia, said Thursday from his office in Norristown that the ruling appears to be the end of the line in the fight to keep the Barnes collection in place.

“The legal mechanisms are pretty much exhausted,” he said. “I would be very surprised if the appellate courts of our state would disturb [Ott’s] decision. At some point, cases have to be over.”

Castor said any last-ditch hopes for stopping the transfer now lie with the Pennsylvania General Assembly, which could hold up millions in state funding that former Gov. Ed Rendell designated for the new museum. Politically, Castor said, that will not happen unless Rendell’s successor, Tom Corbett, urges withholding the money, “and I don’t see any evidence that the governor wants to do that.”

The best chance for opponents of the move to gain legal standing to stop it was lost several years ago, Castor said, when he failed to persuade his two fellow county commissioners to appeal Ott’s ruling on the grounds that moving the Barnes Foundation would deprive Montgomery County of an important cultural asset and tourist attraction, and set a damaging precedent for the enforcement of wills.

Admirers of the Barnes Foundation collection, including L.A. Times art critic Christopher Knight, have argued that where and how the paintings are hung is an essential part of its genius and its value for serious students of art –- which they fear will be diminished by the move despite promises to replicate Albert Barnes' original layout in the new museum.